Constitutional Law I Outline

Con Law Outline

1) introduction to Constitutional law
a)What functions does the const. perform?
i) Establishes a framework for the national gov’t
(1) First 3 Articles – Structure of Gov’t
(a) Article I
(i) Legislative Power
(ii) Creates and defines Congress
(iii) Qualifications for its members
(iv) Defines procedures for enacting laws
(b) Article II
(i) Gives the Executive branch power
(ii) Establishes a method of elections
(iii) Enumerates the powers of the president
(c) Article III
(i) Creates a S. Ct.
(ii) Authorizes congress to create lower federal courts
(iii) Judicial branch has powers over several categories of cases and controversies
(iv) Provides salary protection and lifetime tenure for federal
(v) Provides for judicial independence
(vi) Const. is silent on how many supreme ct. members there can be
1. Has varied from 5-10
ii) Allocates power between the 3 branches of gov’t
(1) Separation of power
(a) We had just broken away from England – tyrannical king
(b) Centralized power was seen as tyranny
(c) Madison – Federalist Papers #10
(2) Checks and balances
(a) Could be inefficient log jams
(b) Provides for an amendment process
(3) Separation of Powers between State and Federal Government
(a) Controls the relationship between federal and state gov’ts
(b) Allocates powers between Federal and State gov’ts
(c) Article I & Amendment X
(i) Congressional action is only valid if it is written in the Constitution
(ii) State action is valid unless it has been explicitly prohibited
(d) Art. VI Supremacy Clause
(i) Once federal laws are properly enacted, the Const. explicitly provides that federal law trumps state law
(e) Each state has its own individual needs
(i) Better handle on the needs of its citizens
(ii) More trustworthy and responsive
iii) Limiting gov’t power to protect individual liberties
(1) Unamended Const. doesn’t protect many individual rights
(2) Art. 1 s. 9 &10
(a) Bills of attainder
(3) Ex post facto laws
(a) To make conduct criminal after the fact
(i) Prevents congress from suspending habeas corpus
(ii) Prevents states from impairing K obligations
(4) Bill of Rights
(a) Application to the states
(i) Not directly applicable to the states until the 14th Amendment
1. 1925 – 1st amendment applied
2. 1963 – right to counsel applied
(b) Application to private conduct
(i) The first 10 amendments (B of R) do not apply to private conduct
(ii) B of R protects individual citizens against governmental action, state actors
1. Tort, criminal, etc. protects against private conduct
(iii) Right to Privacy
1. None are enumerated in the amendments
b)What are the reasons for performing those functions set out in the constitution?
i) Ease of change
(1) Art. V
(2) 2/3 of the Congress or 2.3 of the States have to propos a Const.
(3) Amendments have to be approved by ¾ of the Congress or the States
(a)Provides the process of amending the Const.
(b)Only 27 amendments
(c)It is good that it is hard to change – desire for stability
(d)In a democratic, majoritarian system, there are some fundamental rights that we protect from majority vote
(e)Ex: choosing supreme ct. justices to be the final word on const. interpretation (counter-majoritarian)
2) Federal Judicial Power: Constitution, Article III
a)The Authority for Judicial Review
b)Marbury v. Madison
i) Most important case in Const. jurisprudence
ii) Marbury is suing Madison
iii) Marbury was appointed by Pres. Adams to be a commissioner of the peace
iv) Seeking an order to compel Madison (Sec. of State under Pres. Jefferson) to deliver his commission
v) Has to do w/ passing of powers between Adams (incumbent) (federalists) and Jefferson (republican)
vi) Marbury files suit in S. Ct. seeking a writ of mandamus
(1) Order compelling a gov’t officer to perform a duty
(2) Madison refuses to appear
vii) Congress then repeals the Circuit Ct. Act and eliminates the next term of the ct.
(1) Concern for the constitutionality of repealing the Circuit Ct. Act
viii) Judiciary Act of 1789
(1) Conferred original jurisdiction on the S. Ct. to grant writ of mandamus
ix) Issue: whether the Judiciary Act of 1789 is constitutional
(a)Judiciary Act – sec. 13 – S. Ct. does have larger original jurisdiction in terms of having power to issue writs of mandamus in its original jurisdiction
x) The Ct. declared this Act unconstitutional
xi) If the Ct. upheld the constitutionality of the act, then Madison would have to deliver Marbury’s commission, but Jefferson would not have gone along with this
xii) We would have a constitutional crisis
(a)The S. Ct. does not have the power to enforce such a decision
(b)The Ct. doesn’t have an army, etc.
xiii) The Congress that passed the Judiciary Act was made up of most of the men who made up the Constitution
xiv) Critique: shouldn’t the Ct. had deferred to Congress since it’s members drafted it?
(1) Art. III divides the Ct.’s power between original and appellate jurisdiction and therefore the Judiciary Act of 1789 expands this power, in contradiction of Art. III, Judicial Power
(2) This case does not fall within original jurisdiction
(3) The Const’s allocation would then be irrelevant
(4) Art. III does not explicitly say that Congress cannot expand power, Marshall infers this from the language
(5) Art. III sets the floor for the original jurisdiction, but that Congress can expand it
(a)Marshall doesn’t accept this
(b)Art. III sets the ceiling (max) of the federal judiciary power and cannot be expanded by congress
(c)SMJ cannot be conferred by the parties
(i) One party’s failure to object cannot be waived
xv) Does the Ct. have the authority to declare an Act of Congress unconstitutional?
(1) The Ct. does have the power to declare acts of Congress unconstitutional
(a)An act that is repugnant to the Const. cannot become the law of the land
(2) Based on the Const.’s construction, not text
(a)Checks and balances
(3) Marshall’s Reasoning:
(a)Supremacy Clause of Art. VI
(i) Const. is supreme law of the land
(ii) Who gets to decide this question of what the highest law means, not whether the Const. is binding
(b)Judicial Role
(i) Ordinary role of the cts. is to interpret the law
(ii) It is emphatically the province and duty of the judicial dept. to say what the law is
(c)Limits
(i) Defines and limits the legislature’s power
(ii) Art. I – Congress’s enumerated power
(iii) Places the decision on the constitutionality of an act of Congress to the people themselves
(iv) Judges Oath
1. Other offices have to take an oath
(v) Art. III
1. Gives judicial power to the S. Ct. to hear all cases arising under the Const.
2. If Ct. had to refer to Congress, then it would be meaningless
c) Overall meaning/holding:
i) Marbury lost, did not get his commission b/c the ct. didn’t have jurisdiction b/c judiciary act that would have given it jurisdiction was declared unconstitutional
ii) The ct. lacked jurisdiction to issue a writ of mandamus b/c it was original jurisdiction
iii) Federal cts. c